Alberta Legislature Creates ‘Safe Zone’ Around Abortion Clinics: Balancing the Freedom of Expression of Protesters with Women’s Right to Access Health Care

On Wednesday May 30th, the Alberta legislature passed Bill 9, the Protecting Choice for Women Accessing Health Care Act. In its essence, the Act sets a 50-metre “access zone” around stand-alone abortion clinics, those are clinics not inside hospitals, in Edmonton and Calgary. While the protected clinics total only two in number, seventy-five percent of surgical abortions in the province are performed at one of these two clinics, according to CBC.

Access zones are not necessarily limited to the 50-metres around stand-along abortion clinics. The Lieutenant Governor in Council has the authority to establish an access zone around the residence or office of a physician or abortion service provider (arts. 7 and 8), increase the dimensions of an access zone to up to 150 metres (amendment A1), and provide for access zones of different dimension for different facilities (art. 4(c)).

According to article 2(1) of the Act, within the access zones, all persons are prohibited from:

engaging in interference

protesting

continuously or repeatedly observing a patient, physician, the residence of a physician, or a clinic

requesting that a patient refrain from accessing abortion services or that a physician refrain from providing or facilitating such services

physically impeding or attempting to impede the passage of a patient or physician

intimidating or attempting to intimidate a patient or physician.

Article 3 of the Act prohibits photography, video recording, and audio recording of a patient, physician, or service provider, while the subject is in an access zone, unless they consent to the recording.

There are exceptions to articles 2 and 3 that apply to police officers, service providers, and building owners or operators. There are also exceptions made for all access zones that overlap with others’ private property and/or exclusive rights of use or occupation.

Article 4 of the Act prohibits the distribution of photographs, films, videotapes, audio, etc., made of patients, physicians, or service providers in access zones, where the distribution is intended to dissuade people and physicians from participating in abortion services.

Article 5 of the Act prohibits harassment for the purposes of dissuading people and physicians from participating in abortion services, including continuous or repeated observation, repeated approaches, persistent requests, and threatening conduct.

This is all to say that the breadth of “expression” covered by the Act is wide.

Anyone who contravenes any of the above-mentioned articles is guilty of an offence (art. 13). At first offence, a guilty person is liable to pay a $5,000 fine and/or serve a term of imprisonment of up to 6 months. Upon subsequent offence a guilty person is liable to pay a fine between $1,000 and $10,000 and/or serve a term of up to one year.

The Act also provides for injunctions, civil liability, and arrests without warrant. Police officers may arrest, without warrant, a person whom they believe on reasonable and probable grounds has committed or is in the process of committing an offence (art. 12).

The Political Climate & Legal Debate Around Alberta’s New ‘Safe Zone’ Law

The vote last Wednesday made a splash in the media, in part because it passed 45-1 without participation of members from the Official Opposition United Conservative Party (UCP), 23 out of 25 of which are male.

Some people worry about the freedom of expression of protesters. Samantha Williams of the Back Porch, an anti-abortion outreach centre, says the bill is an infringement on people’s right to express their opinions about abortion. She said protesters are simply standing on the sidewalk and praying, implying that it may also be an infringement on their freedom of religion.

When the Bill came up for first debate in early May, Alberta Infrastructure Minister Sandra Jansen said of the issue: “This is not about free speech…this is about a woman exercising her legal, hard-fought right to her reproductive choices…”

Freedom of Speech & ‘Safe Zone’ Laws in the Rest of Canada

British Columbia was the first province in the country to enact a ‘safe zone’ law in 1995 in the aftermath of the shooting of a Vancouver physician and abortion provider inside his home. Québec and Newfoundland and Labrador soon followed with their own laws in 2016. In 2017, the Ontario legislature passed its Safe Access to Abortion Services Act, which came into effect in early 2018.

In all cases, activists have argued that these ‘safe zone’ laws violate a protesters Charter rights by prohibiting them from expressing their views in public spaces.

In a couple instances this question reached a court of appeal.

In 2008, the Supreme Court of British Columbia decided whether the freedom of expression of two anti-abortionist protesters, Spratt and Watson, was unjustifiably infringed by the province’s ‘safe zone’ law. Ultimately, the law was upheld and leave to the Supreme Court was denied.

The court, Crown counsel, and the plaintiffs all agreed that the provisions of the Act under which the plaintiffs were charged violated s.2(b) of the Charter. “Beliefs about the meaning and value of human life are fundamental to political thought and religious belief. Those beliefs find expression in the debate on abortion. It follows that the importance of communicating those ideas and beliefs lies at the “very heart of freedom of expression” (para 26-27).

Going through the Oakes test in order to determine whether the violating provisions are justified, the court found that:

the valid objective of the law is to protect the health and safety of the citizens who work in and attend clinics providing abortion services (para 72);

the legislation is rationally connected to this objective (para 76);

it would be too difficult to try to “characterize each individual approach to every woman entering the clinic” (para 82);

“the right to freedom does not include the right to a captive audience” (para 82; see Dieleman);

a rule against any interference is indeed the best way to achieve the ends of the legislation (para 80);

expressive activity concerning abortion is not banned in total by the Act;

and the size of the ‘safe zone’ is reasonably tailored to the context of the abortion clinic (para 88).

Finally, the court found that the purpose of the Act is “sufficiently important to justify a limitation on the way in which freedom of expression is exercised in an area adjacent to the facilities providing abortion services…The impugned provisions of the Act are crafted in such a way that the ‘deleterious’ effects do not outstrip the importance of the objective of the legislation” (para 91).

At the time, the BC Civil Liberties Association (BCCLA) intervened on the side of the protesters. Michael Vonn, policy director at the BCCLA, said that originally the organization was against the legislation because of its effect on freedom of expression. However, the organization changed its stance, now arguing that ‘safe zones’ around abortion clinics are a good balance between the freedom of expression of the anti-abortion protester and the right of a woman to access essential health services; in a sense, ‘safe zones’ allow the rights to co-exist.

This blog post was written by a CCLA Volunteer. Opinions expressed do not necessarily reflect the views of the CCLA.